DUBAY
V. WELLS
DISPOSITION:
Affirmed (in favor of Wells).
JUDGES:
Authored by Laura Powell and Lewis Silver with whom Chief Justice Jim Hanson
joins
MATTHEW DUBAY, Appellant, v. LAUREN WELLS,
Respondent
THE HANSEN SUPREME
COURT
October 25, 2009,
Filed
PRIOR HISTORY: Appeal from the United States
Court of Appeals for the Sixth Circuit No: 06-2107. Date filed: November 6, 2007.
COUNSEL: For Appellant: Kirsten Larson, Walla Walla, WA.
For Respondent: Emily Percival, Walla Walla, WA.
I.
FACTS OF THE CASE
Matthew Dubay and Lauren Wells became romantically involved in the
fall of 2004. At the beginning of their
relationship, Dubay informed Wells that he did not
want to father a child. In response,
Wells told Dubay that she was infertile, but was using
contraception as an additional protection.
After the relationship ended, Wells became pregnant with Dubay’s alleged child.
Dubay consistently stated that he had no
desire to be a father. When the County brought a paternity complaint against Dubay, he contested that the application of the Michigan
Paternity Act to his case was a violation of the 14th Amendment’s
Equal Protection Clause.
II. ARGUMENTS
A. Dubay’s procreative rights were
not infringed upon by the State
The
appellant argues that the right to privacy within the United States
Constitution encompasses the right to make decisions regarding conception,
child bearing, and child rearing.
Specifically, the appellant argues that the Michigan Paternity Act infringes
upon his right to decide when to accept the responsibilities of parenthood and
that this right is guaranteed under the Constitution.
Dubay is correct in his assertion that the
Constitution does protect an individual’s right to make decisions about child
bearing. In Eisenstadt v. Baird 405 U.S. 438 (1972), the Supreme Court held that “If the
right of privacy means anything, it is the right of the individual, married or
single, to be free from unwarranted governmental intrusion into matters so
fundamentally affecting a person as the decision whether to bear or beget a
child” (Eisenstadt v. Baird 405 U.S. 438). Additionally, the Court has held for many
decades prior to Einsenstadt v. Baird that the government shall not
interfere with decisions regarding “the sanctity of a man’s home and privacies
of life” (Boyd v. United States 116
U.S. 616 (1888)). Personal decisions
pertaining to procreation (Skinner v.
Oklahoma, ex rel. Williamson 316 U.S. 535) marriage (Loving v. Virginia, 388 U.S. 1, 12) contraception (Eisenstadt v. Baird 405 U.S. 438), and abortion (Roe v. Wade 410 U.S. 113) have all been
protected from government intrusion under the constitutional right to privacy.
While Dubay is correct that the Constitution protects the right
to bear and beget a child, his assertions that the Michigan Paternity Act
infringes upon his right to deny fatherhood is a flawed interpretation of the constitutional
protection. The provisions set forth by
the Act are specifically designed to apply after
a child is born; the Act has no immediate bearing on individual decisions prior
to the birth of a child. As the Act states in Section 712, “The parents of a child born out
of wedlock are liable for the necessary support and education of the child”
(Michigan Paternity Act 1956).
The State can only bring a paternity complaint against a father in the
event that a child is actually born. At
no time before the birth of Wells’ child did the government interfere with Dubay’s decision to have sexual intercourse with
Wells. As the respondent explains, “Dubay engaged in consensual sex without the interference of
the State” (Percival, Dubay v. Wells Brief, 3). Ultimately, the Michigan Paternity Act is
designed to protect the welfare of the child that is born out of wedlock and it
did not interfere with Dubay’s intimate relationships.
B. The
government is entitled to protect the welfare of a child even if in conflict
with the constitutional rights of the parent
Although Dubay did not want to become a father, the government has
the right to enforce financial obligations upon him for refusing to accept
responsibility for his biological child.
In N.E. v. Hedges 391 F.3d 832
(2004), the Sixth Circuit court held:
Plaintiff has identified no
action taken by a state actor that impacted in any way his choice to father a
child… The paternity requirement emanates primarily from the state's power to
intervene under the parens patriae
doctrine, a doctrine that enforces the duties of biological parents, not their
constitutional rights…For reasons of child welfare and social utility, if not
for moral reasons, the biological relationship between a father and his
offspring - even if unwanted and unacknowledged - remains constitutionally
sufficient to support paternity tests and child support requirements (N.E.
v. Hedges 391 F.3d 832).
As clearly demonstrated in the legal decision rendered in N.E. v. Hedges, biological fathers
cannot avoid financial responsibility simply because of an unwanted outcome of
sexual intercourse. Similar to the
Plaintiff in N.E. v. Hedges, the
State never required Dubay to engage in sexual
activity that resulted in a child, nor did the State interfere with Dubay’s choice of contraceptive methods. On the contrary, Dubay engaged in sexual intercourse with Wells
free from government intrusion, knowing full well that conception is a
potential consequence. In Child Support Enforcement Agency v. Doe
125, P.3d 461, 469 (2005), the Supreme Court of Hawaii held that “the
father elected a course of conduct inconsistent with the exercise of his right
not to beget a child. The reproductive consequences of his actions were imposed
by the operation of nature, not statute” (Child
Support Enforcement Agency v. Doe 125, P.3d 461, 469). The
conception of a child has always been a possible consequence of sexual
intercourse and Dubay took that risk by engaging in
intercourse with Wells.
Once a child is born, the government
has an obligation to preserve the welfare of the child in question. As the respondent explains,
“When constitutional rights of parents conflict with their duties, ‘the State
is entitled to adjust its legal system to account for children’s vulnerability’
(Bellotti v. Baird 443 U.S. 622, 635). The Michigan Paternity Act is one such adjustment” (Percival, Dubay v. Wells Brief, 3). Thus, Dubay’s claim
that it is unconstitutional to require him to pay child support because
contraceptive methods failed is unfounded.
Dubay’s right to procreational
autonomy does not include a right to not support a resulting child financially
(Child Support Enforcement Agency v. Doe,
125, P.3d 461, 469). In other words, the
Court places high importance on the child’s rights to health and safety (Rivera v. Minnich,
438 U.S. 574). Denying the State the
ability to enforce parental financial obligations to their offspring would give
both men and women carte blanch
approval to disregard their offspring whenever they felt that they did not wish
to bear the responsibilities of such children.
In this case and in others like it, the
abdication of a father’s financial responsibility to his child places an unfair
and undue burden upon the mother. Citing
a 2005 study from the Guttmacher Institute, the
respondent writes that 73% of 1,209 women who had an abortion in 2004 chose to
do so because “they could not afford a baby” (Percival, Dubay
v. Wells Brief, 6). A father’s negation
of financial responsibility increases a mother’s financial burden and can
subsequently influence her to have an abortion.
Such financial pressure greatly undermines a woman’s choice over her
body. As such, her constitutionally protected rights over child bearing
typically conceptualized as rights to bodily integrity (Percival, Dubay v. Wells Brief, 6) are seriously harmed. Women should not be influenced to have an
abortion by the absence of financial support from the father. As with a child, a father’s procreative
rights should not infringe upon a woman’s right to health and welfare.
C. Dubay’s procreative rights – as
understood through the Equal Protection Clause – were not improperly infringed
upon.
i. The
Fourteenth Amendment allows different treatment of different classes of persons
under specific circumstances.
To
presume that the rights protected by the Equal Protection Clause equate to a right to being treated the same as
others in all situations is a gross misreading of our decisions. The Fourteenth
Amendment allows the State to treat people differently when they are situated
differently. In Eisenstadt v. Baird, 405 U.S. 438, (1972), the
Court held that “the Fourteenth Amendment does not deny to [the] State the
power to treat different classes of persons in different ways” Eisenstadt, at
447. In other words, the State has grounds to treat groups differently if it
could classify them as different types of persons. This reading was reaffirmed
in City of Cleburne v. Cleburne Living
Ctr., 473 U.S. 432, (1985) when the Court held that equal protection was
“essentially a direction that all persons similarly situated should be treated
alike.” City of
Appellant attempts to sidestep this
precedent by claiming that legitimate classifications must be grounded in a
difference substantially related to the object of the legislation. Here, Dubay cites the Court in Royster Guano Co. v. Virginia, 253 U.S. 412, (1920) which held that a
classification “must be reasonable, not arbitrary, and must rest upon some
ground of difference having a fair and substantial relation to the object of
the legislation” Royster Guano Co. at 415. Appellant’s argument
here is that although there are substantial differences between men and women,
they are not substantially related to the object of the legislation, which he
argues is parenting in general. Using this precedent as a
grounding for appeal however, is problematic for Appellant in at least
two ways. First, the phrase immediately following the cited quotation reads,
“so that all persons similarly circumstanced shall be treated alike” Royster Guano Co. 415. Thus, even in the case
Appellant asks the Court to prefer, an affirmative burden of equal treatment is
only established in cases of similar circumstance. A second and much larger
problem, however, is the fact that Appellant’s argument depends on a flawed
interpretation of what the “object of the legislation,” in this case the
Michigan Paternity Act, actually is. To presume that the act’s object is merely
parenting post-birth begs the question of whether men and women are similarly
situated. Thus, the critical standard for when dissimilar treatment of persons
is legitimate should always be whether they are similarly-situated with respect
to the legislation at issue.
Dubay’s
claim that his right to Equal Protection was infringed upon by the Michigan
Paternity Act rests on two claims: 1) that the act does, in fact, treat women
differently than men, and 2) that men and women are
similarly-situated with respect to all aspects of parenting affected by the
act. The Court accepts the first claim but rejects the second, and thus,
concludes that Dubay’s Fourteenth Amendment Equal
Protection Clause claim lacks grounding.
ii. Men
and women are not similarly-situated with respect to bearing and birthing a
child.
Although Dubay
is right to point out the ways in which a mother and father are
similarly-situated with respect to raising and caring for a child, he fails to
account for the fundamental differences between the situations of the mother
and father during the period between conception and birth. Respondent
rightfully points this out, arguing that:
“The extension of reproductive rights to women after
conception (abortion) is a result not of unfair and unequal access to
reproductive decision-making, but of the process of childbearing that is unique
to women. Because women bear children and men do not, the female overwhelmingly
bears the physical person during pregnancy.” (Percival, Dubay
v. Wells Brief, 4.)
Women’s
post-conception reproductive rights mean that Dubay’s
claims have little merit. To the degree that a father does possess a general
reproductive right by virtue of his being similarly-situated with respect to
parenting, the mother would obviously share that right as well. Given this
equal parental right, the mother’s exclusive right to bodily integrity should,
at the very least, serve as a “tie-breaker” when interests conflict. As such, we
conclude that Dubay and Wells were not similarly-situated
with respect to certain aspects of parenting, and thus there were grounds for
dissimilar treatment with respect to the Michigan Paternity Act’s enforcement.
D.
The Michigan Paternity Act satisfies the
requirements of the Equal Protection Clause under the Fourteenth Amendment.
i. The
Michigan Law should be evaluated based on intermediate scrutiny
Dubay’s claim rests on the argument that the
Michigan Paternity Act fails strict scrutiny and is thus unconstitutional. Strict
scrutiny, however, does not apply to this case. In Goetz v. Glickman, 149 F.3d 1131, (10th Cir.1998), the Court held
that Governmental classifications are only subject to strict scrutiny under the
Equal Protection Clause if they target a suspect class or involve a fundamental
right. Gender is not a suspect class; it is a quasi suspect class and this has
been repeatedly emphasized in court rulings. “Gender and illegitimacy
have merited a quasi-suspect class status” (Chuck Stewart, Homosexuality and
the Law: A Dictionary, p. 185). Further, there is no fundamental right
to reject parenting after conception. There is only a parenting right in
the sense of a parental connection with a child; not a right to reject
parenting a biological offspring. (“Parents have a fundamental constitutionally
protected interest in continuity of legal bond with their children.” Matter of Delaney, 617 P 2d 886,
In this case, the arguments based on
gender make the correct standard relatively clear. As
ii. The
fundamental right to procreative control doesn’t extend indefinitely and it is
not improperly restricted by the
Although fathers possess a limited
fundamental right to make the decision whether or not to be a parent in certain
circumstances, that right is hardly unproscribable,
and should not be interpreted as applying after conception. In the case at
issue, Dubay’s claim to a fundamental right to reject
procreation and any attendant responsibilities ended after he engaged in the
procreative act creating the child in question. The Court’s traditional interpretation
of a “fundamental right” supports this. In general, the Court has ruled that a
“fundamental rights claim” protects an individual from some detriment to either
the bill of rights or the Equal Protection Clause of the Fourteenth Amendment.
In the case at issue then, the litmus test for whether a fundamental right has
been infringed upon should be whether the Michigan Paternity Act included some
detriment to either the bill of rights or the Equal Protection Clause. The act
clearly passes this test, as it had no bearing on Dubay’s
individual decisions prior to the
birth of the child, and it never affected his decision
to engage in behavior that led to
conception.
Even if the Court extends the fundamental
right of procreative control to include action post-conception, Dubay would remain on unsustainable ground. The mother’s
right to bodily privacy and integrity forms a countervailing right that is
similarly fundamental. Given that the mother and father would both equally
possess any procreative rights, the mother’s countervailing rights of bodily
privacy clearly form a sort of “tie-breaker” in favor of the mother. Even this
comparison, however, cedes too much to the father. In the situation where
fundamental rights must be weighed against one another, the father’s right to
determine paternity is sufficiently outweighed by the mother’s right to bodily
integrity alone. Either way, Dubay’s claim to a
violation of a fundamental right are not warranted.
iii. The
Michigan Paternity Act passes intermediate scrutiny because the government has
a substantial interest in protecting the child.
Viewed through the lens of intermediate
scrutiny, things become much clearer. In order to meet the requirements of intermediate
scrutiny, “the challenged law must further an important government interest by
means that are substantially related to that interest.” (
III.
Conclusion
Ultimately, Dubay’s claim that the Michigan Paternity Act infringes
upon his right to bear and beget children – and subsequently his right to
privacy – is an unfounded and a flawed interpretation of the Constitution. Dubay decided to
engage in sexual intercourse with Wells and to not provide his own personal
contraception free from State interference and influence. The State only enforced Dubay’s
financial obligations to his child after
Wells gave birth in efforts to protect the welfare of their child.
The federal government has a compelling
interest to preserve the health and safety of children born out of wedlock and
this includes enforcing financial obligations of both parents involved. In this respect, the Michigan Paternity Act
does not infringe upon Dubay’s right to bear and
beget children. Furthermore, Dubay’s abdication of financial responsibility for his
child places an undue burden on both the rights of his child and the
respondent. Dubay’s
reproductive rights do not include the right to not support his child and
infringe upon a woman’s bodily integrity.
This Court agrees with the respondent’s argument that “Dubay exercised his unilateral right to choose or deny
parenthood the night of the child’s conception…Dubay
chose to have sex, and in that decision Dubay
forfeited any claim to deny financial responsibilities” (Percival, Dubay v. Wells Brief, 7).
Dubay’s Fourteenth Amendment claims face the
similar problem of being improperly grounded.
Though enforcement of the Michigan Paternity Act may have resulted in
dissimilar treatment of Dubay and Wells, their status
as differently-situated parties to the process of bearing and birthing a child
renders this discrepancy legitimate.
Further, any fundamental right that Dubay had
to procreative control was not improperly
infringed upon by the Michigan Paternity Act, because restrictions were
enforced exclusively in situations where Dubay’s
right would impinge upon Wells’ greater right to bodily integrity.